Kelly v Lazio Formwork Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Kelly v Lazio Formwork Pty Ltd [2022] NSWPIC 506

APPLICANT:

John Kelly  

RESPONDENT:

Lazio Formwork Pty Limited 

Member:

Philip Young

DATE OF DECISION:

13 September 2022

CATCHWORDS:

WORKERS COMPENSATION - Applicant alleges injuries to lumbar spine, cervical spine and right lower extremity (knee); issues concern Anshun estoppel; liability concerning lumbar spine and cervical spine and section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – regarding lumbar spine and cervical spine Anshun estoppel not established; applicant’s claim of cervical spine injury not established; applicant’s claim of lumbar spine injury established on the evidence; applicant not confined by section 322A of the 1998 Act because of no prior history of permanent impairment claim for the lumbar spine and no assessment of injury for the lumbar spine.

determinations made:

1.     The appropriate Directions are as follows:

(a)  award in favour of the respondent in respect of allegation of cervical spine injury;

(b)  award in favour of the applicant in respect of lumbar spine and right lower limb injuries;

(c)   the matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s lumbar spine deemed to have occurred on
10 April 2010, and

(d)  the President’s delegate is requested to place before the Medical Assessor a copy of the Application and attachments lodged on 16 June 2022 and a copy of the Reply and attachments lodged on 8 July 2022.

STATEMENT OF REASONS

BACKGROUND

1. John Kelly (the applicant) is a 55-year-old-man who was employed by Lazio Formwork Pty Limited (the respondent) as a form worker. He alleges that during his employment with the respondent he performed heavy and arduous duties which placed stress and strain upon his neck causing cervical spine injury with radiculopathy. He also mentions “lumbar spine injury and knee injury”[1] and says that from 1984 to 9 April 2010 the nature and conditions of his work have caused, aggravated, exacerbated or accelerated (aggravated etc) a degenerative condition in his lumbar spine.

   [1] Application at page 7.

2. The claim for weekly payments is brought because the applicant seeks weekly payments after five years pursuant to section 39 of the Workers compensation Act 1987 (1987 Act). The respondent does not accept any aggravation (etc) of the applicant’s cervical spine as required by section 4 (b) of the 1987 Act and does not accept that the applicant has more than 20% whole person impairment resulting from injury as required by section 39 of the 1987 Act. Additionally, the respondent says that the applicant has exhausted his permissible one claim for permanent impairment compensation required by section 66 (1A) of the 1987 Act[2].

   [2] Reply at page 10.

3. Ultimately the applicant came to anterior intervertebral fusion at C5/6/7 in November 2013.

4. The applicant claims weekly benefits compensation from 7 October 2017 on an ongoing basis and suggests that the relevant pre-injury average…